Can Audio Recordings Be Introduced into Evidence During a Custody Proceeding?

In New York State, audio recording conversations cannot be admitted into evidence without the consent of at least one of the conversation’s participants. This is the rule in Civil, Criminal, and Family Court proceedings. If the audio recording is not admissible, the Family Court judge in a custody case may not use the recorded audio to help determine custody.

A tape recording of a telephone conversation without a warrant is wiretapping. In order for a wiretapping to be admitted into evidence, there must have been the consent of at least one of the parties to the tape recording. Wiretapping is defined as the unlawful inception of a telephonic communication (seePenal Law 250.00). Wiretapping is generally committed when a person intentionally overhears a telephonic communication without the consent of a party to the communication. In New York State, without proof of consent of at least one party to conversations, taped conversations cannot be admitted into evidence. Berk v. Berk, 70 A.D. 2d, 417 (1970).

Even if one spouse pays for the telephone line, that does not mean that he or she is allowed to tape conversations that took place on the line and use them in court. In a Westchester County matrimonial case, Pica v. Pica, the husband recorded the contents of two telephone conversations between the wife and a third party on the telephone in the marital residence. The appellate court held that a conversation between the wife and a third person that was recorded by the husband without the consent of either party to the conversation violated the Penal Law and was therefore suppressed and could not be considered on the issue of child custody. 417 N.Y.S.2d 528 ( N.Y.A.D. 1979).

An issue that has come up is whether a parent can claim that he or she can give consent on behalf his or her children and therefore the audio from the conversations between the child and the other parent should be admitted into evidence. In the case I.K. v. M.K., the father argued that he could use audio recordings of conversations between the mother and the children because he is allowed to give consent on behalf of the children. The Supreme Court in Manhattan held that the father could not consent on behalf of the children to letting the audio recording into evidence. The father’s decision to tape record the conversations was based on his self-interest in obtaining evidence for the upcoming custody trial. Since his personal interests cannot be separated from his decision to “consent” on the children's behalf, it has no legal significance in this context. 753 N.Y.S.2d 828 (N.Y.Sup. 2003).

However, if the audio is admitted, whether or not the Family Court judge decides to use the audio recording and how much weight to give it comes down to the standard of the best interests of the child. The judge must weigh the probative value of the recording against society’s interest in having parents and children speak freely with each other. It is up to the discretion of the judge in these cases to determine whether and how to use any of the audio material, keeping in mind the paramount consideration of the best interests of the children.Johnson v Johnson, 652 N.Y.S.2d 504 (N.Y.A.D.,1997).

In conclusion, there are no recognized exceptions to the rule that illegally obtained tape recordings are inadmissible, even in child custody proceedings. This is apparent from New York State statutes and from numerous cases interpreting the statute. The best interests of the child standard, the standard used for all child custody proceedings, does not allow a court to disregard to rules of evidence. With more and more cell phones with audio and visual capabilities out in the marketplace, the ability to record conversations is easier than ever. People going through child custody proceedings should be aware of this development and be careful of what they say to other people, since it can be used against them in the court of law.

Since the first day I walked into Bryan L Salamone’s office, attorney Katheryn Saciolo was very honest with me regarding a better and more affordable way of handling my case. She was very professional and handled everything efficiently. I also worked with her paralegal Doreen Moore who addressed all my concerns. I felt very comfortable working with Katheryn and Doreen. They were very understanding and have made this stressful moment in my life more tolerable. They walk me through every steps of the way and gave me great advice regarding my case. I was very fortunate to have such wonderful people helping me through this difficult process. I highly recommend Katheryn and Doreen to anyone who is looking for an attorney to represent them in their marital matters.-A.C.

Professional and caring. James J. Symancyk, Esq. is on point and efficient.-M.B.

Professional, reliable, open communications. Highly recommended!-G.D.

I have known Bryan for many years and over that time I have recommended his services to many of my friends. I am not the type of person that likes to recommend people, especially with attorneys because it usually ends up bad. I must say however that the office of Bryan L. Salamone is the best there is! the feedback I receive from friends and family members is amazing! from the office staff to Bryan himself, ... it is first class all the way! -D.G.S.

Cheapest place to get a divorce; helpful and professional. –F.E.

Bryan Salamone is the most professional, and knowledgeable divorce lawyer in New York. I have recommended Bryan Salamone, and associates to a few of my friends, fellow co workers regarding family court issues, as well as consultation for divorce. I was without a lawyer during my long divorce. My first consultation with one of Bryan's associates gave me a positive outlook on, how my divorce would turn out! I felt confident and foresaw nothing but positive outcomes for my future and the future of my daughter. Bryan Salamone helped me to feel positive about who I am, and what I was worth, and deserved. If you are looking to feel confident, knowing your family court or divorce case will be in your favor, then Bryan Salamone is the lawyer for you! If I could rate Bryan Salamone and Associates with a 10+ I would! He is only a phone call away! Give him a call! You won't be disappointed!! The results for your case whether you are the husband, or wife seeking the best possible attorney and law firm for family court or divorce court, Bryan Salamone is your man, your results will turn out like mine did, " WINNING" Thank you Bryan Salamone for having my best interest, when I had no hope. Your positive energy and commitment, bought light back into my life! –L.M.N.

Highly professional a true asset for any family law issue. Brandon Druek is a helpful and knowledgeable associate. –J.M.

It is not hard to see why Bryan Salamone is the top family lawyer in New York! Right from the start, Bryan made me feel at ease, listening intently to all of the details of my situation and based on the facts and his knowledge of the law assuaging my fears. I was quickly assured that he would do all he could to protect me and my family. Bryan's staff was professional and kind, and Bryan himself was gracious with his time, making himself available for in person consult and phone calls whenever the need arose. When the court date came, Bryan was exceptional. The courtroom can be an intimidating place, regardless of whether you are the plaintiff or defendant. But somehow, I was able to relax and even find comfort knowing I had representation with years of experience and considerable expertise who really cared. If I am ever unfortunate enough to be in a situation where I need legal help again, I know I can find solace in the fact that I have great people like Bryan Salamone and his firm in my corner! –A.M.

"I have nothing but commendable things to say about Bryan and his staff. He made an otherwise grueling process not only bearable but tolerable. The staff welcomed me and made me feel comfortable throughout the entire process. Bryan handled my case with care and professionalism and I would recommend him and his team to anyone. It was truly a pleasure working with him." —J.M.

"Bryan and his staff expedited my case and made it the best experience it possibly could be. Every step of the process I felt secure and confident in Bryan. I knew I was always in the best hands and wouldn't trust anyone else with such a delicate case. I can't give him or his staff enough praise, I'm completely pleased with everything and can't thank him enough." —M.R.

"I knew of Bryan Salamone and I was hesitant to call because I know he was on the news for high profile cases. I was so surprised to hear his prices were so low. His hourly rate was under $300 and he personally did my intake. I got my divorce resolved in only a few of his billable hours and his associates and staff were very helpful. I highly recommend him to anyone going through a divorce. It's a tough time but they made things simple and easy." —A.H.

"I hired Mr. Salamone to represent me and I can tell you this, he knows his stuff and everyone knows and respects him in the courts. I highly recommend him and his firm if you are seeking a relentless pit bull who will do what it takes to get the job done. I work with lawyers all the time and I can tell which ones are good. Bryan Salamone is the Best" —J.M.

Videos & Media

Our Firm’s Commitment to Be the Very Best

More than 20 years ago, Attorney Bryan Salamone set out to revolutionize divorce representation, making it easier and friendlier towards clients.

Attorney Advertising. This website is designed for general information only. The information presented at this site should not be construed to be formal legal advice nor the formation of a lawyer/client relationship. [ Site Map ] [ Bookmark Us ]